Exhibit 2(2)
ESCROW AGREEMENT
(PERFORMANCE ESCROW AGREEMENT)
THIS AGREEMENT made in triplicate this 4th day of August, 1994, BETWEEN:
MIRABEAU 88 LIMITED, a body corporate incorporated under the
laws of the Province of Alberta, (herein called the "Issuer")
- and -
MONTREAL TRUST COMPANY OF CANADA, a body corporate, duly
authorized to carry on business in the Province of Alberta,
and all Provinces in Canada, (herein called the "Trustee")
- and -
THE SHAREHOLDERS SET OUT IN SCHEDULE "A" ANNEXED HERETO,
(herein called the "Security Holders")
WHEREAS certain the Security Holders, TrueVision 3-D Pty Ltd.
("TrueVision"), and the Issuer entered into an agreement dated March 16, 1994
whereby the Security Holders sold all of the issued and outstanding shares of
True Vision to the Issuer, the consideration for such property being the
allotment of securities in the Issuer to the Security Holders, the property and
the number of securities and the names of the Security Holders presently owning
or about to receive such securities being respectively and more particularly
described in Schedule "A" attached to and forming part of this agreement.
AND WHEREAS certain the Security Holders, Display
Technologies Pty Ltd. ("Display"), and the Issuer entered into an agreement
dated March 16, 1994 whereby the Security Holders sold all of the issued and
outstanding shares of True Vision to the Issuer, the consideration for such
property being the allotment of securities in the Issuer to the Security
Holders, the property and the number of securities and the names of the Security
Holders presently owning or about to receive such securities being respectively
and more particularly described in Schedule "A" attached to and forming part of
this agreement.
AND WHEREAS in order to comply with the requirements of The
Alberta Stock Exchange, the Security Holders are desirous of depositing in
escrow certain securities in the Issuer owned or to be received by them;
AND WHEREAS the Trustee has agreed to undertake and perform
its duties according to the terms and conditions thereof;
NOW THEREFORE this agreement witnesses that, in consideration
of the sum of One Dollar ($1.00) paid by the parties to each other, receipt of
this sum being acknowledged by each of the parties, the Security Holders jointly
and severally covenant and agree with the Issuer and with the Trustee, and the
Issuer and the Trustee covenant and agree each with the other and with the
Security Holders jointly and severally as follows:
1. Where used in this agreement, or in any amendment or supplement hereto,
unless the context otherwise requires, "Cash Flow" means net income derived from
the property, as shown on the audited financial statements or verified by the
Issuer's auditors, adjusted by the following add-backs: (i) depreciation, (ii)
depletion, (iii) deferred taxes, (iv) amortization of good will, (v)
amortization of research and development costs.
2. Each of the Security Holders hereby places and deposits in escrow with the
Trustee those of his securities in the Issuer which are represented by the
certificates described in Schedule "A" and the Trustee hereby acknowledges
receipt of those certificates. The Security Holders agree to deposit in escrow
any further certificates representing securities in the Issuer which he may
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receive as a stock dividend on securities hereby escrowed, and to deliver to the
Trustee immediately on receipt thereof the certificates for any such further
securities and any replacement certificates which may at any time be issued for
any escrowed securities.
3. The Parties hereby agree that, subject to the provisions of paragraph 6
herein, the securities and the beneficial ownership of or any interest in them
and the certificate representing them (including any replacement securities or
certificates) shall not be sold, assigned, hypothecated, alienated, released
from escrow, transferred within escrow, or otherwise in any manner dealt with,
without the written consent of The Alberta Stock Exchange (hereinafter referred
to as the "Exchange") given to the Trustee or except as may be required by
reason of the death of bankruptcy of any Security Holder, in which cases the
Trustee shall hold the said certificates subject to this agreement, for whatever
person, or company shall be legally entitled to become the registered owner
thereof.
4. The Security Holders direct the Trustee to retain their respective
securities and the certificates (including any replacement securities or
certificates) representing them and not to do or cause anything to be done to
release them from escrow or to allow any transfer, hypothecation or alienation
thereof, without the written consent of the Exchange. The Trustee accepts the
responsibilities placed on it by the agreement and agrees to perform them in
accordance with the terms of this agreement and the written consents, orders or
directions of the Exchange.
5. Any Security Holder applying to the Exchange for a consent for a transfer
within escrow shall, before applying, give reasonable notice in writing of this
intention to the Issuer and the Trustee.
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6. (a) The Exchange will consent to the release from escrow of one share for
each $0.10 of Cash Flow generated by or from the property.
(b) The Exchange will consent to the release from escrow of one share for
each $0.10 received by the Issuer, Display or TrueVision in a payment
of a capital advance pursuant to a license agreement entered into by
any of the above parties.
(c) Any release from escrow under this paragraph 6 shall be made pursuant
to a written application on behalf of the Issuer or the Security
Holders, which application shall be accompanied by evidence of the Cash
Flow and/or capital received, in a form satisfactory to the Exchange
Application for release may only be made once per year and may only
relate to Cash Flow and/or capital received in the preceding fiscal
year or the fiscal years of the Issuer since the last release from
escrow pursuant to this agreement, whichever is greater All shares
released from escrow shall, unless otherwise directed by the Exchange,
be distributed pro rata to all Security Holders.
(d) Notwithstanding subparagraph (c) above, the maximum number of shares to
be released from escrow in any year to a Security Holder pursuant to
subpararaph (a) above shall be one-third of the original number of
shares held in escrow on behalf of such Security Holder.
7. A release from escrow of all or part of the escrowed securities shall
terminate this agreement only in respect to those securities so released. For
greater certainty this paragraph does not apply to securities transferred within
escrow.
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8. The Security Holders shall, if a dividend is declared while the Escrowed
Shares or any of them continue to be held in escrow under this Agreement,
renounce and release any right to receive payment of the dividend on the shares
then held in escrow.
9. If the Issuer is wound up and any securities remain in escrow under this
agreement at the time when a distribution of assets to holders of securities is
made by the liquidator, the Security Holders shall assign their right to receive
that part of the distribution which is attributable to the escrowed securities
to the Trustee, for the benefit of, and in trust for the persons and companies
who are then holders of free securities in the Issuer rateably in proportion to
their holdings.
10. (a) In the event that the Issuer has lost, alienated or has not obtained a
good or marketable title to, or has abandoned or discontinued
development of, any or all of the aforesaid property which was or
formed part of the consideration for which the aforesaid securities
were issued, or that any or all of the said property has become of
little or no value, the Issuer shall declare the occurrence of that
event, with full particulars thereof, to the Exchange by a resolution
of its directors, and those Security Holders who are directors from
time to time hereby agree to cause such resolution to be passed and
certified to the satisfaction of the Exchange.
(b) The Security Holder jointly and severally agree with the Issuer and the
Trustee that in the event of any such loss, alienation, failure to
acquire title, or of such abandonment or discontinuance of development
or diminution of value, the securities held in escrow shall not be
cancelled or released from escrow, in whole or in part, except with the
consent of the Exchange.
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(c) The Exchange may, in its sole discretion, having regard to the number
and value of the securities issued for the property, the value of the
property as ultimately established and such other circumstances as it
may consider relevant, determine the number of securities to be
cancelled or released and shall communicate its decision in writing to
the Trustee. If the Exchange determines that less than all the
securities then held in escrow shall be cancelled or released, the
securities to be cancelled or released shall be taken rateably from the
escrowed security holding of each of the Security Holders, unless the
Exchange otherwise directs or the Security Holders, with the consent of
the Exchange, otherwise agree in writing.
(d) On receipt of the Trustee of a determination to cancel, each of the
Security Holders shall tender the required number of escrowed
securities to the Issuer by way of gift for cancellation and, the
Issuer shall thereupon take the necessary action, by way of reduction
of capital or otherwise, to cancel them, and the certificates for these
securities shall be delivered up for cancellation by the Issuer's
transfer agent.
(e) Each of the Security Holders undertakes and agrees to vote and cause to
be voted their respective securities in a manner consistent with the
terms, conditions and intent of this agreement in relation to the
aforesaid gifting back of securities for cancellation.
11. Notwithstanding paragraphs 6 and 10, any shares remaining in escrow on the
fifth anniversary of the date of this agreement, unless otherwise exempted in
writing by the Exchange, shall be cancelled by the Trustee within six (6) months
of the said fifth anniversary.
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12. All voting rights attached to the escrowed securities shall at all times be
exercised by the respective registered owners thereof.
13. The Security Holders and the Issuer hereby jointly and severally agree to
and do hereby release and indemnify and save harmless the Trustee from and
against all claims, suits, demands, costs, damages and expenses which may be
occasioned by reason of the Trustee's compliance in good faith with the terms
hereof.
14. The Issuer hereby acknowledges the terms and conditions of this Agreement
and agrees to take all reasonable steps to facilitate its performance and to pay
the Trustee's proper charges for its services as trustee of this escrow.
15. If the Trustee shall wish to resign, it shall give at least three (3)
months' notice to the Issuer which may, with the written consent of the
Exchange, by writing appoint another Trustee in its place and such appointment
shall be binding on the Security Holders, and the new Trustee shall assume and
be bound by the obligations of the Trustee hereunder.
16. The covenants of the Security Holders with the Issuer in this agreement are
made with the Issuer both in its own right and as trustee for the holders from
time to time of free securities in the Issuer, and may be enforced not only by
the Issuer but also by any holder of free securities.
17. This agreement may be executed in several parts of the same form and the
parts as so executed shall together constitute one original agreement, and the
parts, if more than one, shall be read together and construed as if all the
signing parties hereto had executed one copy of this agreement.
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18. Wherever the singular or masculine is used, the same shall be construed to
include the plural or feminine or neuter where the context so requires.
This agreement shall enure to the benefit of and be binding on
the parties to this agreement and each of their heirs, executors,
administrators, successors and assigns.
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IN WITNESS WHEREOF the Issuer and Trustee have caused their respective corporate
seals to be hereto affixed and the Security Holders have hereto set their
respective hands and seals.
MIRABEAU 88 LIMITED
Per:
-----------------------------------
Per:
-----------------------------------
MONTREAL TRUST COMPANY OF CANADA
Per:
-----------------------------------
Per:
-----------------------------------
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SIGNED, SEALED AND DELIVERED by the respective Security
Holders whose names are subscribed in the right-hand column below in the
presence of the respective persons whose names are subscribed in the left-hand
column.
--------------------------------------- ---------------------------------------
Witness E.N. MONKS
--------------------------------------- ---------------------------------------
Witness I.L.K. XXXXXXXX
--------------------------------------- ---------------------------------------
Witness Xxxxxxx X. Xxxxxxxx as Trustee of the
Edgewater Xxxxxxxx Trust
ROSANDO PTY LTD.
Per:
-----------------------------------
(c/s)
Per:
-----------------------------------
XXXXXXXX XXXX PTY LTD.
Per:
-----------------------------------
(c/s)
Per:
-----------------------------------
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CHEMCO PTY LTD.
Per:
-----------------------------------
(c/s)
Per:
-----------------------------------
CAPITAL TECHNOLOGIES PTY LTD.
Per:
-----------------------------------
(c/s)
Per:
-----------------------------------
GRAYWINTER INVESTMENTS PTY LTD.
Per:
-----------------------------------
(c/s)
Per:
-----------------------------------
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Witness XXXXXXX XXXXXXX
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Witness XXXXX XXXXXX XXXXXXXX
--------------------------------------- ---------------------------------------
Witness XXXXX XXXXXX XXXXXXXX as Trustee for
R & D SERVICES TRUST
NCA INVESTMENTS PTY LTD.
Per:
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(c/s)
Per:
-----------------------------------
PHOEBE INVESTMENTS (WA) PTY LTD.
Per:
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(c/s)
Per:
-----------------------------------
SIIRRON PTY LTD.
Per:
-----------------------------------
(c/s)
Per:
-----------------------------------
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SCHEDULE "A"
To an Escrow Agreement dated the 4th day of August, 1994, and made among
Mirabeau 88 Limited therein called the "Issuer", Montreal Trust Company of
Canada therein called the "Trustee", and certain security holders of the Issuer,
therein called the "Security Holders"
Certificate
Names of Number of Numbers of
Security Type of Securities Securities
Holders Securities Escrowed Escrowed
------- ---------- ----------- -----------
Xxxxxxx X. Xxxxxxxx as Trustee for the Common Shares 1,422,157
Edgewater Xxxxxxxx
Trust
Rosando Pty Ltd. as Trustee for the Common Shares 1,231,570
S.M.V. Trust
E.N. Monks Common Shares 1,231,570
Xxxxxxxx Xxxx Pty Ltd. Common Shares 1,230,563
Chemco Pty Ltd. Common Shares 1,422,157
Capital Technologies Pty Ltd. Common Shares 1,422,157
I.L.K. Xxxxxxxx Common Shares 615,284
Graywinter Investments Pty Common Shares 888,837
Ltd.
Xxxxx Xxxxxx Xxxxxxxx as Trustee for Common Shares 8,216,716
the Xxxxxxxx Family
Trust
Xxxxx Xxxxxx Xxxxxxxx as Trustee for Common Shares 516,814
the R & D Services Trust
Xxxxxxx Xxxxxxx as Trustee for the Common Shares 444,229
Xxxxxxx Xxxxxxx Family
Trust
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Phoebe Investments (WA) Pty Ltd. Common Shares 355,381
Siirron Investments Pty Ltd. Common Shares 355,381
NCA Investments Pty Ltd. Common Shares 177,691
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